McCann: Going to be a very tense hearing on Deflategate.

Koma · Jan 30, 2016

Ivan said:
The fact that they brought in Clement shows not only how freaked out they are about the likelihood of losing but also that the appeal isn't going to have anything to do with this case but everything to do with arbitration and labor law with the Clement crew arguing that if a Brady wins then arbitration will be meaningless and every hamburger flipper in America will be in the Supreme Court when they are denied a raise. It's a bogus argument but their best bet to win is to change the subject and play to the ideology of the Court on labor issues.

McCann says that Paul Clement and Erin Murphy are some of the best appellate attorneys in the country. I have no reason to doubt this, but I wonder if there are too many weaknesses in the NFL's case for even these "elite" attorneys to save it. Clement and Murphy had a hand in the NFL's appellate filing in November. This was one of their arguments:

and

Granted, it's only one point, but really? The NFL is arguing that Berman was wrong in saying that Pash was the co-lead investigator, even though that's what the NFL said publicly and was stated in the Wells Report - "I know that's what my client said and wrote, but that's not accurate. Other things they said are reliable, though. Just not that item." When those are the kind of things that these super-lawyers are trying to overcome, I think it's too much. I don't know how any panel of judges could read that explanation and accept it.

Joker · Jan 31, 2016

I know we said the sun rises in the east every morning but actually, that statement is inaccurate. The sun actually is always shining so your perception of what we said is 100% wrong and Roger Goodell is God.

We have to start contacting these nitwits' elderly parents and ask them "do YOU know where your morons are?"...either that or just found or find a new country where space aliens don't have the ability to speak in public.

rochrist · Jan 31, 2016

PatsFanSince74 said:
Another stunningly bad commentary by someone who fancies himself an "expert.". Of course it's going to be "tense," there is a lot at stake for both sides. But it is also going to be short as each side typically only gets 30 minutes for oral argument. The rest is in the briefs filed bilaterally and in any written responses requested by the judges. There will be no high drama like we had last summer since neither Brady nor Goodell will be present.

We'll know a lot more when the panel is named a week or so before the Appeal Hearing. It's possible that one or other of the Judges might tip their hand during questioning, but I wouldn't hold my breath.

The NFL has indeed gone "all in" with a powerhouse Appellate legal team and it is unlikely that Kessler will argue the case himself, but leave the talking to the NFLPA's Appellate counsel, who, while highly competent does not bring the wattage of the League's attorneys.

The most important information we will get will be the identities of the three judges. The Second Circuit has judges who go all the way back to Carter and.Reagan, though the majority were appointed by BHO, GWB, WJC and GHWB. That is almost too broad a range of ideological ground to contemplate.

You talking about McCann? Because he most certainly IS an expert.

RelocatedPatFan · Jan 31, 2016

Can the person hearing the "appeal" change the offense that the person is appealing for?

I mean the ruling came down for TB having a general awareness (and all), but when Goodell issued his ruling he moved the goalposts without any further evidence being available. So while Goodell seems to actually have a fair bit of latitude on making his ruling, he seems to be under the assumption that there is no basis of law for which the CBA exists.

In other words, the law of Shop is whatever he decides it is and not based on any form of law. That the CBA circumvents all basis of judicial law. To me, that's going to be a very hard case for his expert panel to overcome and it seems ridiculous to me that it even allowed to get this far.

ivanvamp · Jan 31, 2016

QuantumMechanic said:
The rulebook doesn't limit the discipline for tampering with the balls to $25000. It says "...subject to discipline including, but not limited to, a fine of $25000."

I know. Which is why I said Goodell had some latitude.

SOME.

By any even semi-normal standard, that doesn't allow him to issue WHATEVER PENALTY HE FEELS LIKE ISSUING.

It's like the fine for littering being "including, but not limited to, $100". I mean, yeah if you toss a beer can you get the $100 fine. If you dump two weeks' worth of your family's trash you may get fined $1,000. But under no circumstances does the "including, but not limited to, $100" mean the judge can throw you in prison for three years for dumping two weeks' worth of trash on the grass.

That's what happened here.

(Actually, that even grants the almost certainly inaccurate premise that there was trash littered on the ground in the first place.)

Ivan · Jan 31, 2016

Koma said:
McCann says that Paul Clement and Erin Murphy are some of the best appellate attorneys in the country. I have no reason to doubt this, but I wonder if there are too many weaknesses in the NFL's case for even these "elite" attorneys to save it. Clement and Murphy had a hand in the NFL's appellate filing in November. This was one of their arguments:

and

Granted, it's only one point, but really? The NFL is arguing that Berman was wrong in saying that Pash was the co-lead investigator, even though that's what the NFL said publicly and was stated in the Wells Report - "I know that's what my client said and wrote, but that's not accurate. Other things they said are reliable, though. Just not that item." When those are the kind of things that these super-lawyers are trying to overcome, I think it's too much. I don't know how any panel of judges could read that explanation and accept it.

I don't disagree that the case they were given is a sack of sh.t, in fact I couldn't agree more, that's why I think they went after Clement in particular, they are trying to pull off a magic trick where he tells the court " don't look here (at the evidence from the hearing), look over here ( at the macro picture of all labor law) ." He is going to argue that the court must defer to any arbitration as binding otherwise every defendant who gets an unfavorable ruling will cry bias and will go all the way to the Supreme Court to get the result they want. It's complete crap and its a hail Mary but if you go back to the bleatings of Roger Cossack and Lester Munson you will see that was their plea from the beginning, don't look at the case in front of you just defer blindly to the notionthat all arbitration is binding. And unfortunately that is the way federal courts have been leaning for some time now, fairness and reason are irrelevant what matters is eliminating the ability to challenge the finding of arbitration. It's simply a slippery slope argument, which is usually the argument of those who have nothing better to throw at the wall.

Ivan · Jan 31, 2016

RelocatedPatFan said:
Can the person hearing the "appeal" change the offense that the person is appealing for?

I mean the ruling came down for TB having a general awareness (and all), but when Goodell issued his ruling he moved the goalposts without any further evidence being available. So while Goodell seems to actually have a fair bit of latitude on making his ruling, he seems to be under the assumption that there is no basis of law for which the CBA exists.

In other words, the law of Shop is whatever he decides it is and not based on any form of law. That the CBA circumvents all basis of judicial law. To me, that's going to be a very hard case for his expert panel to overcome and it seems ridiculous to me that it even allowed to get this far.

The NFL is saying Goodell can do whatever he wants, period, and that the court has no right to pass judgement on his finding.

Ivan · Jan 31, 2016

ivanvamp said:
The simple question, IMO, is whether Doty was correct in ruling that Goodell violated the law of the shop. It seems fairly simple. The NFL's argument basically is (as has been said already) that Goodell has the power to issue whatever penalty he wants. That even if a federal judge thought the penalty is outrageous, or that Goodell shouldn't have issued ANY penalty at all because there's no evidence of wrongdoing, that none of that matters because the CBA grants Goodell this power.

The NFLPA's position is that yes, within reason, Goodell has the power to issue penalties for wrongdoing. But Goodell can't simply do WHATEVER THE HELL HE WANTS. The rulebook has penalties listed for a reason, and while Goodell indeed has some latitude (like a judge fining a person $500 instead of $100 for a speeding ticket), he can't simply issue ANY penalty. That is, if the rulebook says football tampering is a $25,000 fine, Goodell, while being granted some latitude to increase that, can't just suspend Brady for three seasons for that. In other words, the NFL's argument that Goodell can do whatever he wants is fundamentally flawed and even the CBA is governed by US Labor law.

Given what we know of the case, I can't see how the NFL wins this. Goodell clearly is way, way, way out of bounds with how he handled all of this.

Doty didn't hear this case.

Galeb · Jan 31, 2016

Ivan said:
Doty didn't hear this case.

Forget it, he's rolling.

PatsFanSince74 · Jan 31, 2016

rochrist said:
You talking about McCann? Because he most certainly IS an expert.

Then this commentary does not represent his "best work." We all have bad days at the office.

ivanvamp · Jan 31, 2016

Ivan said:
Doty didn't hear this case.

Yeah I meant Berman. Did I really wrote Doty?? Wow.

ivanvamp · Jan 31, 2016

Galeb said:
Forget it, he's rolling.

Wait til I get going! Where was I?

Australia.

Yes, Australia.

patfanken · Jan 31, 2016

Pardon me but I don't have the time read all 5 pages, but isn't the REAL point of the NFL case that it doesn't matter if Brady is innocent or not. The CBA gives the right of the commissioner to mete out punishment, hear the appeal,, rule on the appeal, and there is nothing any court can do to suspend that judgement.

Goodell wants that kind of power to wield over the players and owners. That is why he is fighting so hard, long past any logical standard as it pertains to the events of the AFCCG. THAT is why the NFLPA is fighting so hard to oppose it.

Guilt or innocence DOESN'T matter. Truth or lies, DOESN'T matter. The NFL is hoping the appeals court will suspend logic and justice and focus solely on a strict interpretation of the law and a very NARROW presentation of precedence, even if it makes no sense in this case.

The shear stupidity and injustice Berman found in the league's case literally forced him to step beyond the usual bound of labor law to lash out at the injustice of the attack on Brady's good name and unfair punishment. Their claim that Brady DIRECTED a conspiracy to deflate footballs to gain some kind of unfair advantage is so ludicrous only hard core haters believes it any more. Instead their claims have morphed into a claim that, fair or unfair, they have the legal right to do what they did. Guilt, innocence, or plain old common sense have no place in this appeal.

This is the rabbit hole that the league has run down to gain their pound of flesh. It is a symptom of how F'd up our legal process has become that they even have a 10% chance of winning. In one respect I almost hope they win, because it would force Brady to file the defamation suit that would finally bring down this toxic cabal. Most likely they won't win, and will just wait for the public to forget about their fraud and move on to the next thing., and pretend nothing ever happened.

Patsfanin Philly · Jan 31, 2016

Ivan said:
The NFL is saying Goodell can do whatever he wants, period, and that the court has no right to pass judgement on his finding.

Even though it was the NFL that ran to court to venue shop to support Goodell's decision.....

Ivan · Jan 31, 2016

Patsfanin Philly said:
Even though it was the NFL that ran to court to venue shop to support Goodell's decision.....

That's the irony of it. Even more ironic is that Clement is going to argue that they should side with the NFL so they won't have to hear cases involving arbitration. I.e... The slippery slope argument that if Brady wins it will open the floodgates for every arbitration to be challenged in higher courts.

XLIX · Jan 31, 2016

Jackson 2 said:
OK, you're correct and no one should ever be foolish enough to challenge you on anything. What a douche. Now, before you get your little weenie in a bunch about being insulted, realize what an intransigent dink you are. See post # 72.

fcb27bd7bd9b341ed4ac4642205f8dad3724ad4af8eb661b534ebaed1c7dd736.jpg

Ivan · Jan 31, 2016

patfanken said:
Pardon me but I don't have the time read all 5 pages, but isn't the REAL point of the NFL case that it doesn't matter if Brady is innocent or not. The CBA gives the right of the commissioner to mete out punishment, hear the appeal,, rule on the appeal, and there is nothing any court can do to suspend that judgement.

Goodell wants that kind of power to wield over the players and owners. That is why he is fighting so hard, long past any logical standard as it pertains to the events of the AFCCG. THAT is why the NFLPA is fighting so hard to oppose it.

Guilt or innocence DOESN'T matter. Truth or lies, DOESN'T matter. The NFL is hoping the appeals court will suspend logic and justice and focus solely on a strict interpretation of the law and a very NARROW presentation of precedence, even if it makes no sense in this case.

The shear stupidity and injustice Berman found in the league's case literally forced him to step beyond the usual bound of labor law to lash out at the injustice of the attack on Brady's good name and unfair punishment. Their claim that Brady DIRECTED a conspiracy to deflate footballs to gain some kind of unfair advantage is so ludicrous only hard core haters believes it any more. Instead their claims have morphed into a claim that, fair or unfair, they have the legal right to do what they did. Guilt, innocence, or plain old common sense have no place in this appeal.

This is the rabbit hole that the league has run down to gain their pound of flesh. It is a symptom of how F'd up our legal process has become that they even have a 10% chance of winning. In one respect I almost hope they win, because it would force Brady to file the defamation suit that would finally bring down this toxic cabal. Most likely they won't win, and will just wait for the public to forget about their fraud and move on to the next thing., and pretend nothing ever happened.

Berman didn't step beyond the bounds of labor law he found that the basis of arbitration lies in a fair hearing, absent that the finding should be overturned.

rochrist · Jan 31, 2016

PatsFanSince74 said:
Then this commentary does not represent his "best work." We all have bad days at the office.

What exactly did he say that was wrong?

XLIX · Jan 31, 2016

Patsfanin Philly said:
Even though it was the NFL that ran to court to venue shop to support Goodell's decision.....

Yeah, that's my favorite part of all the deliciously moronic things the NFL has done. Essentially, they filed a motion whereby they went to court preemptively to tell the courts they have absolutely no right to interfere.

Rob0729 · Jan 31, 2016

patfanken said:
Pardon me but I don't have the time read all 5 pages, but isn't the REAL point of the NFL case that it doesn't matter if Brady is innocent or not. The CBA gives the right of the commissioner to mete out punishment, hear the appeal,, rule on the appeal, and there is nothing any court can do to suspend that judgement.

Goodell wants that kind of power to wield over the players and owners. That is why he is fighting so hard, long past any logical standard as it pertains to the events of the AFCCG. THAT is why the NFLPA is fighting so hard to oppose it.

Guilt or innocence DOESN'T matter. Truth or lies, DOESN'T matter. The NFL is hoping the appeals court will suspend logic and justice and focus solely on a strict interpretation of the law and a very NARROW presentation of precedence, even if it makes no sense in this case.

The shear stupidity and injustice Berman found in the league's case literally forced him to step beyond the usual bound of labor law to lash out at the injustice of the attack on Brady's good name and unfair punishment. Their claim that Brady DIRECTED a conspiracy to deflate footballs to gain some kind of unfair advantage is so ludicrous only hard core haters believes it any more. Instead their claims have morphed into a claim that, fair or unfair, they have the legal right to do what they did. Guilt, innocence, or plain old common sense have no place in this appeal.

This is the rabbit hole that the league has run down to gain their pound of flesh. It is a symptom of how F'd up our legal process has become that they even have a 10% chance of winning. In one respect I almost hope they win, because it would force Brady to file the defamation suit that would finally bring down this toxic cabal. Most likely they won't win, and will just wait for the public to forget about their fraud and move on to the next thing., and pretend nothing ever happened.

The CBA gives Goodell the authority to be judge, jury, and executioner; but it doesn't allow him to run a bogus investigation and a kangaroo court. He still must adhere to the fairness doctrine. There are still laws of the land that supersede the CBA and the NFL violated them in this case.

It is funny. Federal courts overturn a arbitration rulings only about 5-10% of the times. In the case of the NFL, it is about 90% of the time. The only time the NFL won is in the Starcap case and that was on a second appeal.

As Judge Doty has said, I don't think Goodell understands the NFL's CBA.

McCann: Going to be a very tense hearing on Deflategate.

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